That was the one-line order issued today by the U.S. Supreme Court, which disposed of an appeal by plaintiffs in a lawsuit seeking to force Hawaii election officials to include military personnel and students in the population count used to define political districts.
A three judge panel ruled in favor of the state last July, holding that the state’s position was reasonable, data-based, and met constitutional requirements.
Check out the comments by attorney Robert Thomas, who represented the plaintiffs. They appear in his always interesting Inverse Condemnation blog.
Although the case is over for now, Thomas comments:
Things are evolving, and Hawaii’s long-standing treatment of military and military families as outlanders is arcing towards inclusion. Which seems only fair, since Hawaii gladly accepts the massive benefits their presence brings: $18 billion per year to the Hawaii economy, and the additional population for a second seat in Congress (everyone is counted for purposes of Congressional apportionment). The military who are stationed in Hawaii have become more integrated into the community than in the days of Burns, when most could realistically be treated as transients.
The reference to “the days of Burns” is a reference to an earlier court case that went to the U.S. Supreme Court. Here’s the original reference, and I’ve added a link to that Supreme Court decision.
This was always an uphill (upwind?) challenge because in Burns v. Richardson, 384 U.S. 73 (1966), the Court seemed to conclude that it was purely a political question about who Hawaii must include within its definition of “population,” and it could thus exclude the military as “transients.”
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“in the days of Burns”? What Burns Administration policies are being held up to criticism here?
The reference is to a prior U.S. Supreme Court decision in a Hawaii reapportionment case, Burns v. Richardson. I’ve added the reference and a link to my earlier post.
My question would be, are the military members registered to vote in their home state? Do they pay Hawaii state taxes? Are their cars registered in Hawaii?
To answer the above questions:
1. Most military do not register to vote in Hawaii. For purposes of legislative representation, it does not matter where someone is registered to vote. Other residents are not excluded as “nonpermanent residents” based on whether they register to vote in Hawaii or elsewhere. Indeed, our registration and voting numbers are embarrassing.
2. Most do not pay Hawaii income taxes, although many military family members, those who work in Hawaii, do pay Hawaii income taxes. And the impact on the question of permanence is the same as above: everyone else who was included was not asked whether they pay Hawaii income tax. Children, some aliens, those who simply do not earn enough income to pay state income taxes, for example, are automatically included.
3. A mix. Some do, some don’t.
All interesting questions. Questions like this will, I suspect, be part of the debate the next time reapportionment rolls around (every ten years).
And Ian is absolutely right about the “Burns” reference. It was to reference the US Supreme Court’s 1966 decision, not Jack Burns himself (even though the case involved Jack Burns as a party, hence the title of the case).
Next time a reapportionment panel tries to ignore Hawaii State Constitution, maybe it can reflect on this disastrous misadventure by led ex-Oahu Judge Marks who ignore testimony, advice and legal opinions in the process. She was damn rude in Hilo’s lone hearing. Justice and fairness has been served. Oahuans must recognize N-Isles are changing!
Re-reaing Ian’s linked earlier article on the 3 judge ruling which has just been upheld, I found I had committed to opening “a bottle of the good stuff”…”if/when we win at the Supreme Court.”
Actually, I drank the good stuff when we won equal marriage rights during the special session, so that bottle’s gone.
I appreciate Robert Thomas’ remarks on his own blog. He was an advocate for one side, but that does not prevent me from criticizing his views as, well, “one-sided.” He criticizes Hawaii for treating military personnel as “outlanders” in our decision to not count them in our redistricting. But that is backwards. Military personnel, perhaps uniquely, get to decide whether they wish to be treated as legal residents of the stand in which they are located or in another state with whom they have possible connections. And over 98% of them CHOSE, through their own deliberate act, to declare their legal residence in another state.
As Thomas knows, there are no legal barriers to Hawaii-based military personnel declaring their residence here and to vote. Hawaii is fully welcoming them as full citizens IF that is what they want. But they do NOT want and have said so.
Thomas suggests the military brass should not have disclosed those declarations of legal residence to the state. In other words, hide from the Reapportionment Commission the data necessary for them to fulfill their obligation under our state constitution to do so on the basis of permanent residents. He further hints the brass will probably stonewall any such request in the future.
So for Thomas, the question is not one of “equal rights,” but of special rights for military personnel to pick and choose which benefits they want from being located here while avoiding the responsibility of having to pay local taxes.
Hugh Clark expresses anger at the original Reapportionment Plan, one which included military personnel, their dependents and non-resident students. Let’s be clear, that plan was rejected by the Hawaii Supreme Court, forcing the Commission to draft the new plan, the one which Robert Thomas argued against and which the US Supreme Court has upheld.
Yes, the Reapportionment Commission made a serious mistake in not following the State constitution with the first plan. But that is a separate issue than what just happened with the Supreme Court. I disagree with High’s attack on Judge Marks. There are two things wrong with it. First, while I was not at the Hilo hearing, I di watch a video of it. And Stan Roehrig was way out of line, both with some of his ill-conceived legal arguments an his aggressive attitude. So I did not see Judge Mark’s treatment of him as rude. (Hugh, I live over here on Oahu. Am I the first person to suggest to you that Stan Roehrig can be obnoxious at times?)
Second, it is wrong to blame Judge Marks for the initial decision to only extract a very small number of identifiable military personnel from the population base. She personally favored a larger extraction, one which would have granted the Big Island its well-deserved Senate seat. But the Commission was split, with the Republicans being fairly obstructionist. Two wanted NO non-resident military extracted for “patriotic” reasons. Two reluctantly agreed that a very small number could be extracted. On the other side, Tony Takitani, the only neighbor island commissioner, wanted 98% of military personnel, their dependents and non-resident students extracted. The other Dems were split between the minimal extraction and a larger one. For the Commissions work to proceed, they had to cobble together a majority of 5 votes on some plan. So Judge Marks set aside her preference in order to join 4 others supporting the minimal extraction. But saying at the time, this was to allow the work of the Commission to move forward.
If you need a target for your anger over the original decision to ignore the State constitution, you should direct it at the Republican members of the commission, not the judge. It was political operative Dylan Nonaka, now living back on your island, who was the strongest proponent of not granting that extra seat to the people of Hawaii County. That should haunt him. But it won’t if you misdirect your fire at the judge.
As for Hawaii welcoming them as full citizens … they ARE full citizens, of the United States. A country of which Hawaii is part, however controversial that may be to some people here who seem utterly fixated on events of a century or more ago.
Hawaii people for many years have enjoyed the billions of federal dollars the military drops here every year, all the while dismissing military people and their families as so many “haoles” and transients who aren’t really part of the Islands and who shouldn’t count for much in the life of this place. The fact is that if the military pulled out tomorrow, the local economy would plunge into depression, and this place would quickly turn into the kind of food-stamp paradise most other U.S. Pacific possessions are. Economically speaking, the best thing in Hawaii’s future right now is the rapidly growing Chinese military establishment, which probably guarantees that the huge U.S. military presence will be here for decades to come.
Every member of the military and their families are free to register to vote here. Most choose to remain voting citizens of their home states, fora variety of reasons. That’s one reason the Hawaii law has. Ee. Upheld, as I understand the cases.